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Cadernos de Saúde Pública

Print version ISSN 0102-311X

Cad. Saúde Pública vol.26 n.5 Rio de Janeiro May. 2010

http://dx.doi.org/10.1590/S0102-311X2010000500005 

DEBATE DEBATE

 

Debate on the paper by Feitosa et al.

 

Debate sobre o artigo de Feitosa et al.

 

 

Reinaldo Ayer-de-Oliveira & Gabriel Oselka

Faculdade de Medicina, Universidade de São Paulo, São Paulo, Brasil. rayer@usp.br

 

 

Feitosa et al. objectively and sensitively present and discuss an emblematic theme for bioethics: the conflicts between a people's culture and practice. Issues related to the gestation and birth of human beings are certainly among the major dilemmas in the passage from the culture of what is considered a primitive people to the cultures of so-called "civilized man". The authors coherently express the importance and controversies of the concept of autonomy. The authors have painstakingly studied the occurrence of infanticide and suicide among the Zuruahá.

We believe it is relevant to report a similar case, submitted to the São Paulo State Medical Board (CREMESP) with a request for its expert opinion and discussed in a recent publication by the Board 1.

A physician working in the far North of Brazil was involved in the following situation: a local program for the protection of Indian tribes referred a pregnant woman expecting twins to the private clinic where he works (in charge of emergency treatment for Indians and company employees), requesting that he hide one of the newborns from the mother, and expressing the plan that this second twin be raised far from the biological family.

The reason for the request was that according to the local indigenous culture, infanticide - by asphyxia, drowning, or direct head trauma - is "the solution" for exterminating what is considered the "evil" twin, with the right to survival reserved for the "good" sibling. Infants are also eliminated in other circumstances, such as congenital malformations, Down syndrome, or when the child has not been fathered by the woman's husband.

The plan to hide the child posed a major ethical dilemma for the physician, reinforced by a previous episode. Six years previously, he had admitted premature twins, with the smaller of the two suffering life-threatening complications. A week after giving birth, when the mother learned that this twin was out of danger, she attempted to kill it in the nursery. The nursing staff found the infant in "arrest", with profuse bleeding from the anus, eyes, and mouth, and with bruises covering its body.

Alarmed, the physician requested that the woman be removed from the clinic, omitting the fact that the child had survived after intensive care. He agreed with the white people in charge of the Indian reservation that "the best thing" would be to hire an employee to raise the infant far from the tribe, unbeknownst to the family.

What nobody expected was that this information "leaked", and as soon as the mother learned that this second twin had survived, she killed the one she had kept.

According to the physician, "The surviving child is five years old and lives with the maternal grandmother. He has no physical sequelae, but is rejected by everyone. Whatever is given to him is taken away by the others, and he feeds on scraps".

In short, the physician asks: what should be done now, if this other pregnant woman may enter labor at any moment? Hide the twin birth, showing the mother only one of the newborns, as the Indian affairs program suggests? What are the criteria for choosing? Is it fair to risk the life of the infant that lives with the mother (in case she learns that the other has survived)? Or would it be best to show her both infants, even knowing that one of them will be killed at the first opportunity?

The initial argument is that according to Brazil's Penal Code 2, "non-adapted forest-dwellers" - as they are referred to in this case - are considered "not criminally liable": according to Article 26, they are exempt from prosecution since they are "incapable of understanding the illicit nature of their acts". However, "acculturated Indians" are criminally liable.

According to the official discourse, "acculturated", "integrated", or "adapted" Indians are defined as those that can speak Portuguese and perform practices and jobs normally adopted by "the white man", besides assimilating his habits. Houaiss (the standard reference dictionary for Brazilian Portuguese) defines "acculturation" as the cultural modification of an individual, group, or people that adapts to another culture or extracts significant traits from it, or even a fusion of two or more cultures resulting from permanent contact between them.

If one draws a parallel with the "white man's culture", the Indian mother that killed her child would be violating Art. 121, which safeguards the right to life (with a sentence of six to 20 years in prison). Theoretically, Art. 121 would give the physician some "argument" to counter the culture of infanticide defended by the tribe.

According to the moral code of practically all religions (especially Judaism and Christianity), to kill is wrong.

According to Art. 6 of the Brazilian Code of Medical Ethics (Basic Principles), "Physicians should show absolute respect for human life, always acting in the patient's benefit. They should never use their knowledge to cause physical or moral suffering, for the extermination of human beings, or to allow attempts on the patient's dignity or integrity" 3.

The ethical dilemma discussed here relates to the possibility that the Indian woman, pregnant with twins, might commit what our "white" culture defines as the crime of infanticide. According to the "indigenous culture", the Indian woman views the elimination of one of the twins as the "solution" to exterminate "evil" infant, with the right to survival reserved for the "good" sibling.

A solution with an unpredictable outcome would be to inform the mother of the existence of twins and allow her to decide what to do after giving birth.

The Brazilian National Constitution of 1988 gave the Federal government the exclusive jurisdiction to legislate on Indian affairs (22, XIV), establishes Federal court jurisdiction for trying and ruling on disputes concerning indigenous rights (109, XI), and acknowledges indigenous social organization, customs, languages, beliefs, and traditions (231, caput) 4.

However, we know of no court ruling on the infanticide practiced by some indigenous groups in cases of twin births or newborns with malformations.

One could argue that in a plural society, all human groups are fully capable and autonomous. Their decisions must be respected and even occasionally tried in court, as long as they are previously informed of all the consequences. To hide the birth of one of the children means treating the problem paternalistically, thus violating the Brazilian legal order 5.

Meanwhile, the Brazilian Code of Medical Ethics, Art. 6, sustains the physician's conduct in hiding the twin birth, since it states explicitly that "Physicians should show absolute respect for human life, always acting in the patient's benefit. They should never use their knowledge to cause physical or moral suffering, for the extermination of human beings, or to allow attempts on the patient's dignity or integrity".

As for the child, such conduct is sustained precisely by the value of preserving life in its integrity and dignity. However, in relation to the mother, the decision to protect the child, hiding its existence and isolating it to live outside the village, has repercussions that are difficult to assess.

Thus, the unavoidable question is: what about the mother's right to decide?

If we prioritize the culture of that specific village (which has a complex organization of practice and belief, relating ways of understanding and action that are peculiar to this culture/belief), the conflict can only be resolved by referring the Indian woman (with her twins in utero) back to her "natural habit", in order for the pregnancy to play out according to her own tradition.

Importantly, modern non-indigenous society views autonomy as a good to be preserved. A fair and just society morally preserves and sustains each person's right to live as an autonomous individual. We would add that autonomy is a concept related to freedom.

Thus, if we accept that the indigenous mother's values emanate from her culture/belief, the question arises: is she free to decide on her children's fate, i.e., that one twin should be eliminated?

Cultural traditions rooted in given cultures are not always easily accepted by others. An example is "clitoridectomy", a tradition in some African tribes.

Based on values emanating from the culture/belief of these tribes, this tradition allowed (and in some societies still allows) the excision of the clitoris in young girls in early puberty, by means of mutilating practices and with a high risk of morbidity and mortality. This extirpation was (or is) performed by women that traditionally detain the necessary practical knowledge. Despite respect for cultural traditions, the custom became the target of an international campaign of condemnation and disapproval when it came to the knowledge of people from elsewhere in the world.

In the case discussed here, if ones chooses physician's autonomy as the priority (with the understanding that this helps define the full exercise of the human condition, without any tutelage), the conflict is resolved by hiding the unborn child and subsequently isolating it from the village.

Crucially, if the physician chose to perform the delivery and hide the infant, he would face ethical risks, doubts, and dilemmas. There would definitely be a need for sedation (analgesia) of the mother, since transvaginal or caesarian delivery without her active participation could result in birthing complications.

There would also be doubt about recording information on the patient chart, and especially about preserving secrecy, since information would be shared by all the persons participating in the act of hiding one of the twins.

Finally, the case highlights the possibility of the debate on autonomy as a fundamental idea, as follows: "In deliberation pertaining to action, we should not only examine the prudence of such action in order to know whether it is an appropriate means for obtaining a desired end, but we should determine whether it is intrinsically fair and morally correct".

 

1. Ayer-de-Oliveira R. Índia. In: Oselka GW, coordenador. Bioética clínica, reflexões e discussões sobre casos selecionados. São Paulo: Conselho Regional de Medicina do Estado de São Paulo; 2008. p. 187-90.         [ Links ]

2. Brasil. Decreto-Lei nº. 2.848, de 7 de dezembro de 1940. Dispõe sobre o Código Penal. http://www.planalto.gov.br/ccivil_03/Decreto-Lei/Del2848compilado.htm (accessed on 15/Apr/2008).         [ Links ]

3. Conselho Federal de Medicina. Resolução nº. 1.246, de 8 de janeiro de 1988. Dispõe sobre o Código de Ética Médica. http://www.cremesp.org.br/library/modulos/legislaçao/versao_impressao.php?id=2940 (accessed on 08/Apr/2008).         [ Links ]

4. O direito dos indígenas na Constituição. http://www.viomundo.com.br/opiniao/o-direito-dos-indigenas-na-constituicao/ (accessed on 28/Jul/2008).         [ Links ]

5. Brasil. Lei nº. 10.406, de 20 de Janeiro de 2002. Código Civil. http://www.planalto.gov.br/Ccivil_03/LEIS/2002/L10406.htm (accessed on 23/May/2008).         [ Links ]